LexSTATE OF MAHARASHTRA AND ANR. versus MOHD. SAJID HUSAIN MOHD. S. HUSAIN ETC.
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STATE OF MAHARASHTRA AND ANR. A v. MOHD. SAJID HUSAIN MOHD. S. HUSAIN ETC. OCTOBER 10, 2007 [S.B. SINHA AND H.S. BEDI, JJ.] B Code of Criminal Procedure, 1973: s.439-Grant of anticipatory bail-Determining factors- C Discussed s.439-Anticipatory bail-Accused persons police officers and politicians-Charged with offence of raping minor girl-Remaining underground-Sessions judge rejected their regular bail and anticipatory bail-High Court allowed anticipatory bail-Correctness D ~- of-Held: Not correct as victim needed protection-Moreover accused persons unscrupulously not complied with the conditions imposed on them and also not present before the court number of times-Penal Code, 1860-s.376-Prevention of Immoral Trafficking Act-s.5. Penal Code, 1860: ss.376, 342 r.w. s.34-Agc ofprosecutrix-According to medical examination, determined to be 14 to 16 years-Held: Prosecutrix being minor, her consent for sex is not relevant-Case rightly made out under E ~376 F The prosecution case was that the prosecutrix was staying with her maternal aunt 'M' after her mother remarried on death of her father. She was assaulted and abused by 'M' and as a result she left the home and started working in the house of accused 'T' as a maid servant. In the house of 'T' some girls used to come. After few G days when one girl did not come, 'T' took prosecutrixto a place where she was offered a soft drink and then against her will, was subjected to rape. Thereafter she was regularly been sent out with various 995 H 996 SUPREME COURT REPORTS [2007] 10 S.C.R;-~ \ A persons. Respondents who are politicians, police officers and . businessmen allegedly had been taking her to hotel, government ,__.. ·guest house and even to their own apartment. On 22.04.2007, the accused persons, named in the First Information Report took her to a hotel to take liquor. However, the accused persons started B behaving indecently with her. The police came and took all of them to the police station. She was medically examined on 22.04.2007. Her Radiological (Bone) Assessment suggested her age to be between 14-16 years. (- Respondents were not named in the First Information Report. C However, prosecutrix made several statements thereafter implicating the respondents. When respondents came to know that they have been named by the said girl, they absconded. They med an application for D anticipatory bail before the Sessions Judge which was dismissed. Thereafter, they filed application for anticipatory bail before the + High Court which was allowed on the ground that the prosecutrix being major and having willingly consented for sex for consideration, primafacie, a case under s.376 IPC is not made out and thahince E prosecutrix was stationed in the Remand Home she waltully protected. In appeal to this Court, State contended that the High Court committed a serious error in passing the impugned judgment inasmuch as from various public documents, it is evident that the i F date of birth of the prosecutrix is 28.06.1991 and, thus, at all material times, namely, from January 2007 to 22.04.2007, she was minor and in that view of the matter, the purported consent given by her would not be of much significance; that in the First Information Report, the names of the respondents had not been taken, but in a case of G this nature, the court should have considered the fact that she had been arrested. by the police and as such it is just possible that she Y was not in a position to recollect all the details. Allowing the appeal, the Court H STATE v. MOHD. SAJID HUSAIN MOHD. S. HUSAIN ETC. 997 ~ · HELD: 1. The four factors, which are relevant for considering A the application for grant of anticipatory bail, are : "(i) the nature and gravity or seriousness of accusation as apprehended by the applicant; (ii) the antecedents of the applicant including the fact as to whether he has, on conviction by a Court, previously undergone imprisonment for a term in respect of any cognizable offence; (iii) B the likely object of the accusation to humiliate or malign the reputation of the applicant by having him so arrested; and (iv) the possibility of the appellant, if granted anticipatory bail, fleeing from justice." [Para 13] (1005-B, C, D] 2.1. If the prosecutrixwas a minor, consent on her part will pale C into insignificance. She had been medically examined and her approximate age on the basis of radiological test"
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